Court upholds Marin's plastic bag ban

Dressed in a plastic bag cape, Sita Khufu speaks against plastic grocery bags at a Marin County Board of Supervisors meeting on Tuesday, Jan. 4, 2011, in San Rafael, Calif. The board is considering a ban on the bags.
(IJ photo/Frankie Frost)
Frankie Frost

The 1st District Court of Appeal in San Francisco, upholding Marin County's plastic bag ban as an appropriate regulatory action, tossed out an effort by a plastic industry coalition to scrap it.

County officials joined environmental activists in exulting, one noting that local jurisdictions awaiting the decision before proceeding with similar bans can now get moving.

"Many of the cities and towns in Marin County have been waiting for this ruling, and it's likely that many of them will now adopt their own bag ordinance," said Carol Misseldine, an environmental advocate whose husband, the late Supervisor Charles McGlashan, was the driving force behind the ordinance.

"Great environmental win," she said. "Charles would be elated."

"This is a significant obstacle removed from the path toward a countywide ban," said Nona Dennis of the Marin Conservation League. "Too bad Charles couldn't share in the celebration. This is really his victory."

Dennis added the league "will continue to push Marin's other cities and towns to join Fairfax and the county," the only jurisdictions in Marin with bag bans.

Deputy County Counsel David Zaltsman said legal foes fell flat when they argued the county violated the law by proceeding without an environmental review.

"First, that the appellate court recognized that the categorical exemptions the county employed for projects intended to enhance and protect the environment were appropriate for this ordinance," Zaltsman noted. "And second, that the Save the Plastic Bag people submitted no evidence to show that the ordinance would have any negative environmental effect."

The appellate court ruling found that "there is no substantial evidence" the ordinance would have a significant adverse impact, and further, the county "exercised the regulatory powers afforded it by the California constitution."

In short, the three-judge panel dismissed arguments it said misconstrued another case, misinterpreted the law, misjudged procedural actions or otherwise had little merit. "The ordinance constitutes a regulation enacted for the purpose of protecting natural resources and the environment," the court declared in the June 25 decision.

But litigant Stephen L. Joseph of Save the Plastic Bag Coalition, an association of plastic manufacturers and distributors, said the appellate court got it wrong and asserted the legal battle may not be over.

"We believe that the ruling is incorrect as a matter of law," Joseph said. "However, it should be noted that as it is and will remain an unpublished opinion, it is not a binding precedent and may not be relied upon, cited, or even mentioned in any other case," Joseph said.

"Therefore, only Marin County may rely on it," the attorney said. "Its effect is strictly limited to the named parties in the case," which are the county and its department of agriculture and weights and measures, he noted. "Nevertheless, we may file a petition for review in the California Supreme Court."

Zaltsman said that while the court opinion is unpublished, "it is still very useful" for lawyers and agencies seeking information about how a court might handle future cases. As for seeking action by the state's high court, justices there take less than 5 percent of the cases they are asked to review, he added.

"We are very happy our ordinance will stay in force," Zaltsman said.

Joseph contends county supervisors violated the California Environmental Quality Act when they approved the ban in January 2011 without requiring an environmental study.

The supervisors outlawed plastic bags at grocery store checkout counters in unincorporated Marin and imposed a 5-cent charge on paper bags. Supervisor McGlashan was triumphant, contending assertions by Joseph that a ban "may have a significant negative net impact" on the environment were baloney.

The county law covering unincorporated areas affects about 40 retail stores. It would apply to about 450 if extended countywide as urged last month by the civil grand jury.

Joseph, head of the plastic coalition, is a former Tiburon resident who sparked a state law barring use of trans fats after suing Kraft Foods and McDonald's Corp.

Joseph argued two years ago that a ban would promote use of paper bags and cited an environmental report prepared for Los Angeles County. It concluded that negative impacts of a paper bag include 3.3 times more greenhouse gas emissions than a plastic bag; 1.1 times more consumption of nonrenewable energy than a plastic bag; four times more consumption of water than a plastic bag; 1.9 times more acid rain than a plastic bag; 1.3 times more negative air quality than a plastic bag; and 2.7 times more solid waste production.